Punjab-Haryana High Court
Alka Bhalla vs Br Ambedkar National Institute Of ... on 22 September, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CM No.11583 of 2014 in/and CWP No.7923 of 2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CM No.11583 of 2014 in/and
CWP No.7923 of 2014
Date of decision:22.09.2014
Alka Bhalla
....Petitioner
Versus
Dr.B.R.Ambedkar National Institute of Technology & others
......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Tribhuvan Dahiya, Advocate, for the petitioner.
Dr.Anmol Rattan Sidhu, Sr.Advocate
with Mr.Abhishek Jhamb, Advocate, for the respondents.
****
G.S.Sandhawalia J.
CM No.11583 of 2014
Application for placing on record the reply, filed on behalf of the respondents, is allowed, subject to just exceptions.
Reply is taken on record.
CWP No.7923 of 2014 Challenge in the present writ petition is to the order dated 16.04.2014 (Annexure P4) whereby the petitioner's request for withdrawal of her voluntary retirement notice, before it became effective, has been rejected and she had been ordered to be relieved from duty w.e.f. 12.03.2014. Further prayer has been made to issue a writ in the nature of mandamus, directing the respondents to reinstate the petitioner in service as Associate Professor in the Department of Mathematics, with continuity of service and all consequential benefits and pay arrears of salary with interest @ 18% per annum.
The pleaded case of the petitioner is that the respondent-Institute is a SAILESH RANJAN deemed University under the Central Act, the National Institutes of Technology, 2014.10.01 12:49 I attest to the accuracy and integrity of this document CM No.11583 of 2014 in/and CWP No.7923 of 2014 -2- Science Education & Research Act, 2007 (for short, the 'NIT Act') and is under the pervasive control of the Central Government. The petitioner had joined the respondent-Institute as Lecturer in the Department of Mathematics on 01.03.1993 and was selected and promoted as Lecturer (Selection Grade) w.e.f. 25.09.2006 and designated as Associate Professor w.e.f. 02.03.2008. She had been working to the entire satisfaction of the superiors and nothing adverse to her service was ever conveyed to her by the Institute. Due to unavoidable family circumstances, while working as an Associate Professor, she had served 3 months notice of voluntary retirement from service to respondent No.2-the Board of Governors, who was the appointing authority, on 12.12.2013 (Anneuxre P2). As per the notice, which was served under Rule 48-A of the Central Civil Service (Pension) Rules, 1972 (for short, the 'Pension Rules'), the resignation was to take effect from 12.03.2014. The said notice was served through proper channel through the Head of the Department, for onward transmission to respondent No.2. The compelling family circumstances having been settled in petitioner's favour, she withdrew the notice by writing a letter dated 19.02.2014 (Annexure P3) which was duly received by the Department on 20.02.2014 and forwarded to the competent authority on 21.02.2014 and thus, the notice was withdrawn well before 12.03.2014, i.e., the date from which the resignation was to take effect. She continued to perform her duty of teaching and research even after the purported date of retirement, i.e., 12.03.2014 right upto 21.04.2014, when she received the impugned order dated 16.04.2014, accepting her notice for voluntary retirement and rejecting the request for withdrawal of the same. The said order was signed by respondent No.4, the Director, by assuming himself to be the appointing authority of the petitioner but she continued to hold the charge of the post and accordingly, the action was challenged on the ground that the order had SAILESH RANJAN been passed usurping the powers of the Board of Governors and she had already 2014.10.01 12:49 I attest to the accuracy and integrity of this document CM No.11583 of 2014 in/and CWP No.7923 of 2014 -3- applied for the withdrawal of the notice of voluntary retirement.
In the written statement filed by the respondents, the plea taken is that the resignation was accepted on 01.01.2014 and the petitioner was duly informed and conveyed to her on 02.01.2014 and finally on 16.04.2014, vide the impugned order (Annexure P4). It was, however, admitted that the petitioner had been performing her duties as Associate Professor of the Department and that she continued performing the same even after the purported date of retirement, i.e., from 12.03.2014 till 21.04.2014. Defence of Rule 48-A (4) of the Pension Rules was taken that Government servants were precluded from withdrawing the notice except with the specific approval of the appropriate authority and that change of compelling circumstance on account of which she withdrew her notice, was not shown. It was averred that the answering respondents were authorized officers of the Board of Governors to convey the approval to the answering respondent No.3 and the Board of Governors had authorized the Chairman to take the decision and later on, such approval of the Board of Governors are ratified by the Board. The petitioner had been informed orally regarding the acceptance of her notice of resignation on 01.01.2014. Inspite of that, she had withdrawn her notice on 19.02.2014, for the reasons best known to her.
After hearing counsel for the parties, this Court is of the opinion that the present writ petition is liable to be allowed for the following reasons.
Admittedly, the initial notice of voluntary retirement was under Rule 48-A of the Pension Rules and it was specifically mentioned that the application was considered as requisite notice period w.e.f. the date of the application, for processing of the retirement benefits as admissible to the petitioner. Rule 48-A reads as under:
"48-A. Retirement on completion of 20 years' qualifying service SAILESH RANJAN 2014.10.01 12:49 (1) At any time after a Government servant has completed twenty I attest to the accuracy and integrity of this document CM No.11583 of 2014 in/and CWP No.7923 of 2014 -4-
years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.
Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is -
i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes,
ii) posted abroad in foreign based offices of the Ministries/Departments,
iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.
(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority :
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
(3) Deleted (3-A) xxxxx (4) Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority :
(5) xxxxx (6) xxxxx EXPLANATION - For the purpose of this rule the expression "Appointing Authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement."
Sub-Rule (2) further goes on to show that the acceptance is to be there by the appointing authority and where the appointing authority did not refuse permission, the retirement was to take effect from the expiry of the said SAILESH RANJAN 2014.10.01 12:49 I attest to the accuracy and integrity of this document CM No.11583 of 2014 in/and CWP No.7923 of 2014 -5- period. Under Sub-Rule (4), a Government servant who had elected to retire was to be precluded from withdrawing his notice except with the specific approval of such authority. In the present case, there is no dispute that the petitioner, before the expiry of the 3 months, i.e., before 12.03.2014, had withdrawn the request for voluntary retirement on 19/20.02.2014 and accordingly, sought the necessary approval. There is no dispute and rather it is admitted that she continued working till 21.04.2014 and the impugned order was only passed on 16.04.2014 and that too, by the Director, stating that the Chairman of the Board of Governors had accepted it w.e.f. 12.03.2014. It is also mentioned that the request for withdrawal of the notice was turned down by the Chairperson, Board of Governors and the petitioner stood relieved from duty w.e.f. 12.03.2014. Thus, there is an apparent contradiction in all aspects. Firstly, the petitioner continued working till 21.04.2014, as per the admission made in the written statement. The alleged defence that on 01.01.2014, she had already been informed orally that her request for voluntary retirement has been accepted, is also without any basis. Once she continued to work beyond the period when her retirement was to come into force, nothing has been shown to this Court that any decision was taken on 01.01.2014 and the plea that she had orally been informed, is without any basis and cannot be accepted.
Counsel for the petitioner has rightly pointed out that the appointment of the petitioner, as per Section 11 of the NIT Act, was to be done by the Board and it was only the Board who was to accept the notice of voluntary retirement. It is apparent that before the Board could take a decision on the said notice, the petitioner had already withdrawn it. Section 24 of the NIT Act shows that the Board is the appointing authority for the academic staff. Section 24 reads as under:
SAILESH RANJAN2014.10.01 12:49 I attest to the accuracy and integrity of this document
CM No.11583 of 2014 in/and CWP No.7923 of 2014 -6- "24. Appointments. - All appointments of the staff of every Institute, except that of the Director[***], shall be made in accordance with the procedure laid down in the Statutes, by
(a) the Board, if the, appointment is made on the academic staff in the post of Lecturer or above or if the appointment is made on the non-academic staff in any cadre the maximum of the pay scale for which exceeds rupees ten thousand five hundred;
(b) the Director, in any other case."
In such circumstances, the stand of respondent No.4-the Director that the resignation could be accepted by the Chairman, who is duly authorized by the Board of Governors, cannot be accepted, as nothing has been shown that any such authority has been delegated upon the Chairman. Rather the specific stand is that the Chairman is authorized to take decision and later on, the approval is to be ratified by the Board. Nothing has been shown that the said decision has been ratified by the Board and thus, the affidavit, which has now been submitted, is apparently contradictory, in all aspects and no reliance can be placed upon it, in view of the vacillating stand taken by the respondent-Institute.
Counsel for the petitioner is well justified in relying upon the judgment of the Apex Court in Balram Gupta Vs. Union of India & another 1987 (Supp) SCC 228 wherein Rule 48 of the Pension Rules has been specifically discussed and the law was laid down that there can be no unilateral termination and the Government servants have liberty to withdraw the notice of voluntary retirement till the date indicated. It was, accordingly, held that the resignation was to take effect prospectively and the withdrawal was earlier and Sub-Rule (4) of the Pension Rules might be a salutary requirement but it was not that the statutory authority could act unreasonably. Accordingly, the appellant was put back in job with all consequential benefits. Relevant observations of the Apex Court read as under:
"But in the facts of the instant case the resignation from the SAILESH RANJAN 2014.10.01 12:49 I attest to the accuracy and Government servant was to take effect at a subsequent date integrity of this document CM No.11583 of 2014 in/and CWP No.7923 of 2014 -7- prospectively and the withdrawal was long before that date. Therefore, the appellant, in our opinion, had locus. As mentioned hereinbefore the main question was whether the sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under the sub- rule (4) of Rule 48-A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether sub rule (4) of Rule 48-A was valid or not. It may be a salutary requirement that a Government servant cannot with- draw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether sub-rule (4) of Rule 48-A of the Pension Rules is valid or not. If properly exercised the power of the government may be a salutary rule.
Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. The only reason put forward here is that the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is not an unreasonable reason. The guidelines indicated are as follows:
(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subsequently (but during the currency of the notice) to withdraw the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant has no such right. There would, however, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant concerned is agreeable.
12. In this case the guidelines are that ordinarily permission should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in SAILESH RANJAN 2014.10.01 12:49 I attest to the accuracy and consideration of which the notice was originally given. In the facts of integrity of this document CM No.11583 of 2014 in/and CWP No.7923 of 2014 -8- the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or management was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant."
In Srikantha S.M. Vs. Bharath Earth Movers Ltd. 2005 (8) SCC 314 the principle of 'no work, no pay' was also taken into account and it was held that the employee was not allowed to work and therefore, the said principle would not be applicable in a case of withdrawal of the resignation since the relationship of employer-employee had not come to an end, while placing reliance upon the judgment of Balram Gupta's case (supra). Relevant observations read as under:
"34. We must frankly admit that we unable to uphold the contention of the respondent-Company. A similar situation had arisen in J.N. Srivastava and a similar argument was advanced by the employer. The Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties.
35. Accordingly, the benefits were granted to him. In Shambhu Murari Sinha II also, this Court held that since the relationship of employer and employee continued till the employee attained the age of superannuation he would be entitled to "full salary and allowances" of the entire period he was kept out of service. In Balram Gupta, in spite SAILESH RANJAN 2014.10.01 12:49 I attest to the accuracy and of specific provision precluding the Government servant from integrity of this document CM No.11583 of 2014 in/and CWP No.7923 of 2014 -9- withdrawing notice of retirement, this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits.
36. For the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The action of the respondent- Company in accepting the resignation of the appellant from January 04, 1993 and not allowing him to work is declared illegal and unlawful. It is, therefore, hereby set aside. The orders passed by the learned single Judge and the Division Bench upholding the action of the Company are also set aside. The respondent-Company is directed to treat the appellant in continuous service upto the age of superannuation i.e. December 31, 1994 and give him all benefits including arrears of salary. The Company may adjust any amount paid to the appellant on January 15, 1993 or thereafter."
To be fair to the counsel for the respondents, he has relied upon the judgment of the Apex Court in Director General, E.S.I.C. Vs. Puroshottam Malani 2008 (3) KLT 613. However, a perusal of the said judgment would go on to show that the employee had received all the benefits of voluntary retirement and had approached the Tribunal for setting aside the order and it was in such circumstances, it was held that the reasons for withdrawal of the notice for voluntary retirement were not justified and the appeal was allowed, setting aside the relief granted to the employee. In such circumstances, reliance upon the said judgment would not be of any help to the respondents.
Accordingly, the present writ petition is allowed. The impugned order dated 16.04.2014 (Annexure P4) is quashed. A writ of mandamus is issued holding that the petitioner shall continue in service and will be entitled to all the monetary benefits with continuity of service. All the dues admissible to the petitioner be paid to her within a period of one month from the receipt of a certified copy of this order.
22.09.2014 (G.S.SANDHAWALIA)
sailesh JUDGE
SAILESH RANJAN
2014.10.01 12:49
I attest to the accuracy and
integrity of this document